Report of SR on Transitional Justice on Victim Participation

84. The present report and the report to the General Assembly focusing on national consultation processes emphasize the importance of broad participation in transitional justice measures, including by victims. They are intended as contributions to clarifying the rhetoric of transitional justice and matching it in practice.

85. Although, as both reports have demonstrated, there are significant experiences of both national consultations and of victim participation, one of the things that is missing is greater efforts to analyse those experiences from a comparative perspective, with an eye to greater clarity regarding challenges and conditions for success.

86. The Special Rapporteur will not attempt to summarize the contents of the report in this section. In brief, however, he provides evidence of solid legal backing for the participation of victims in all stages of the design, implementation and monitoring of each of the transitional justice measures — truth commissions, criminal justice processes and reparation programmes — and security sector reform, one dimension of guarantees of non-recurrence.

87. He provides examples of the indispensable contributions by victims to the operation of truth commissions, which, after all, depend almost entirely on the willingness of victims to provide testimony; he refers to the strides made by the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia, and to the contributions of victims in other national jurisdictions, through mechanisms such as private prosecutions, to the achievement of justice; he cites the great importance of making sure that reparation programmes provide benefits that fit the victims’ understanding of adequate redress and, perhaps most surprisingly, he describes the contributions that the participation of victims can make to processes of security sector reform, which have not been particularly victim-friendly heretofore.

88. The Special Rapporteur distinguishes between two broadly different types of arguments that can be used to justify victim participation. The first type is epistemic, and concentrates on the contributions that victims can make to the quality of information on the basis of which transitional justice measures can be designed, operated and monitored. Victims not only have a privileged perspective on the ways in which systems and institutions that were meant to guarantee their rights failed to do so, but also on what constitutes effective redress in terms of truth, criminal justice, reparation and guarantees of non-recurrence.

89. Having said this, the Special Rapporteur has no interest in treating victim participation as if it were a silver bullet, or an uncomplicated endeavour. Hence, he warns first that participation in transitional justice measures can involve security risks for victims, social risks, economic costs and risks of retraumatization, among others.

90. Furthermore, he offers reminders that victims do not constitute a monolithic constituency characterized by internal consensus, but rather that they are frequently divided not just because of the pre-existing social cleavages that may have contributed to the violations and to conflict in the first place but additional ones, some of them resulting from the violations and the conflict themselves.

91. He focuses on three conditions for success of victim participation that are frequently not met. Security conditions frequently do not allow for coercion-free participation by former victims, who have especially compelling reasons to be wary of the risks involved and mistrustful of institutions that have often failed abjectly in protecting them.

92. While there has been some progress in offering some psychosocial support to participants in transitional justice measures such as truth commissions and criminal justice processes, the support is, more often than not, quite basic and centred mostly on the participation entities. However, the combination of systematic violations and, not infrequently, years of neglect call for more robust forms of assistance if there is going to be any reasonable expectation that people who were the targets of either State repression or of gross abuses by third parties will be able to participate on an equal footing with others in the design and implementation of a policy that has frequently led to reprisals. The Special Rapporteur, recalling that, despite all this, victims have indeed contributed to transitional justice processes, takes the opportunity to acknowledge the sacrifices that victims have endured in the search for justice.63

93. Finally, in the two reports he examines the paradox of participation that involves consulting on questions of rights those persons who have been offered weak reasons for having neither a solid understanding of themselves as rights holders, nor experience with effective redress mechanisms.

94. While finding most of the existing capacity-building efforts severely wanting, and therefore arguing that there are few more urgent needs than the design and implementation of proper capacity-development programmes for victims as well as other stakeholders if the promise of participation is going to be realized, the Special Rapporteur calls for the adoption of consultation and participatory methods that are not single events; for this reason, among others, consultation and participation must be ongoing processes.

95. The Special Rapporteur also recalls that in addition to epistemic reasons, there is also a legitimacy-based argument for victim participation that includes the following considerations: participation provides victims a measure of recognition not only as victims but also as rights holders; this in turns helps victims become visible and gain a place in the public sphere frequently denied to them. These equalizing tendencies enable the identification of common experiences, values and principles across different constituencies, a necessary condition for sustainable consensus- and coalition formation on controversial redress and prevention issues.